Candy Confusion

There was an aufruf in shul; the chosson just concluded his aliyah.

Men circled the bimah, joyously singing “Siman tov u’mazal tov!” as candies showered from the women’s gallery above.

The children had their own simcha. With squeals of delight, they scrambled across the floor, chasing after every candy that bounced and skittered between the tallis-draped legs.

Yonasan, one of the quicker boys, darted here and there, stuffing his pockets with candies. Within moments, his small jacket was bulging. “Look how much I got!” he boasted to his friend.

In his excitement, one candy slipped from the overstuffed pocket and rolled across the floor.

Sruli, another boy who had been less successful in the great candy race, spotted the loose sweet. Quick as lightning, he swooped down and grabbed it. He held it aloft triumphantly.

“Hey, that was mine!” Yonasan protested, pointing at the candy. “I already collected it!”

Sruli clutched the candy tightly. “What do you mean?” he asked. “It was on the floor, ownerless. I picked it up fair and square.”

“It fell from my pocket,” Yonasan explained. “I saw it fall and was going to pick it up, but you grabbed it.”

“Once it fell, it’s like the other candies,” Sruli said. “The same way you grabbed what was thrown, I grabbed what fell from you.” He popped the candy into his mouth.

“You owe me a candy!” Yonasan exclaimed.

Some nearby adults chuckled at the boys’ fierce exchange, but Mr. Friedman was thoughtful. “It’s a good halachic question,” he said. “Why don’t you ask Rabbi Dayan?”

The boys looked to the rav nearby, who smiled at their lively debate. Yonasan asked:

“Does Sruli owe me a candy?”

“Candies thrown at a simcha are considered hefker,” replied Rabbi Dayan. “Whoever catches them acquires them. Because Yonasan intended to retrieve his candy that fell, it remains his.”

“The Mishna (Gittin 59b) teaches that when a child acquires a hefker item, taking from him is theft on account of darchei shalom – i.e., to prevent strife. His acquisition, though, is not of full legal validity. Therefore, if one wrongly stole from him, the thief should return it, but beis din cannot enforce returning the item (C.M. 270:1).

Seemingly, this applies to any age minor, even if he already has monetary understanding. Only if the item was granted to him by an adult, does the child legally acquire it fully, but not when acquiring from hekfer (Rema C.M. 243:15; 270:1).

Shach (C.M. 243:6), though, maintains that a child with elementary understanding of value can acquire mid’oraisa, even from hefker, so that once Yonasan grabbed the candy, it is his fully, and beis din can enforce returning it to him.

However, later Acharonim reject the opinion of the Shach, and uphold the ruling that Yonasan’s acquisition is only darchei shalom (Ketzos 243:5; Nesivos 243:9).

Furthermore, the candy was taken by another child. The Mishna (B.K. 87a) teaches that a minor who damaged is not liable, even after he matures, because he is not of legal mind. Similarly, if he stole and lost the stolen item, he is exempt. Presumably, the same is true if he already ate the item, even though he benefitted from it. However, when the item is intact, beis din can take it from him and return it to the owner (C.M. 424:8; 349:3; Pischei Choshen, Geneivah 4:21[56]).

Even so, many maintain that he has a heavenly obligation to compensate when he matures. Therefore, poskim recommend that his parents compensate the damaged party to spare the child this obligation when he matures (Rema O.C. 343:1; Pischei Teshuva C.M. 349:2).

It seems, though, that in our case that Yonasan acquired the candy only on account of darchei shalom, if Sruli already ate the candy he would not even have a heavenly obligation to pay.

“Despite this,” concluded Rabbi Dayan, “there is a general chinuch issue of training a child about monetary honesty. Conversely, Yonasan’s parents would do well to train him to forgo, especially because he has so many other candies.”

Verdict: A hefker item acquired by a child is his; taking it from him is theft on account of darchei shalom, but not legally enforceable. A child who steals, and the item is no longer intact, is legally exempt, but has a heavenly obligation to compensate when he matures according to many poskim.